from the that's-how-it-works,-of-course dept

I was last in Toronto a few years back, pre-Uber, and I remember clearly having a long conversation with the cabbie who drove me from the airport to my hotel, about just how ridiculously corrupt the taxicab business is in Toronto. He was telling me how supply was artificially limited, and even things like being allowed to pick up passengers at the airport required under-the-table kickbacks to certain officials. The driver was pissed off about the whole thing. I'm reminded of that now, as the news comes out that some cabbies in Toronto are suing Uber itself, claiming illegal competition. This is interesting on a few levels. While we know that many cabbies are upset about the competition from Uber drivers, in most cases the direct attacks on Uber have come from the cities and politicians, rather than directly from the cabbies. Yes, there have been riots by cabbies in France, and protests other places, but actual lawsuits have mostly been limited. There are a few exception, such as when Chicago cabbies sued Uber with some nonsensical claims about false advertising.

Here the claims seem equally questionable:

Law firm Sutts, Strosberg LLP, which is representing the taxi drivers, said in a statement on Thursday that the named plaintiff, cab driver Dominik Konjevic, alleges that "Uber X and Uber XL have created an enormous marketplace for illegal transportation in Toronto".

There doesn't seem to be much of a claim here other than "we don't like competing." Or, as we've described it in the past, felony interference with a business model. It's not even clear how the Toronto cabbies have standing here, as you'd think anyone who would have a right to complain would be the passengers, but of course, that's not going to happen, because most of them actually like services like Uber.

There's also the fact that an Ontario court just rejected an attempt by Toronto itself to block Uber in the city, saying that the service was legal. The cabbies here are filing this under different "provincial" law though it seems likely to have the same overall outcome.

Yes, I'm sure if you're a cabbie in a cushy industry where there is tremendous corruption and artificially limited supply it must really suck to have to face real competition from players who are more innovative and provide a better overall service. But that doesn't mean it's illegal.

from the when-the-government-becomes-the-vexatious-litigant dept

Open records requests and lawsuits go hand-in-hand. Agencies obfuscate, stall, perform deliberately inadequate searches and fail to respond in a timely manner. These actions frequently result in lawsuits, which are notably almost always filed by the requester.

In March, a private citizen named Harry Scheeler Jr. sent a request to Hamilton Township for surveillance footage of the town-hall and police-department buildings, making the request under the state Open Public Records Act (OPRA) and the state common law right of access to public records. A few weeks later, instead of responding to the request, the township sued Scheeler and asked a local court for relief from any obligation to respond, then or in the future. The township also asked for attorney’s fees.

As Jonathan Peters at the Columbia Journalism Review points out, this isn't the first time this has happened, but it is incredibly rare and it almost always ends badly for the agency instigating the legal action. This case is no different, although it did manage to survive long enough for Scheeler to narrow his request in hopes of having the lawsuit dropped. The township was very persistent, unfortunately. But unfortunately for the township, the presiding judge recognized how truly effed-up it would be to allow this suit to continue or otherwise encourage government agencies to sue open records requesters.

Scheeler asserts that the Township has no authority to seek relief from the records request in court; that only the requestor has such a right. Consequently, before reaching the merits of the request, the threshold issue that the court addresses in this opinion is whether a government agency, such as the plaintiff, may file a lawsuit against a person requesting public records, or whether the right to institute a lawsuit determining the validity of the request belongs solely to the requestor. The court concludes that the right to bring the issue to court belongs exclusively to the requestor, not the government agency.

New Jersey's open records law -- like those everywhere in the US -- provides for the filing of legal complaints against unresponsive government agencies. What the law doesn't provide for is the township's actions. In lieu of a response, it sought an injunction barring not only this request, but any future requests for similar information by Scheeler. As the court points out, this is about as far-removed from the intention of open records laws as anyone can get.

To allow a government agency to file a lawsuit against someone who has submitted a request for government records would undoubtedly have a chilling effect on those who desire to submit such a request, undercutting the public policy previously described.

A government agency's lawsuit against document requestors subjects them to involuntary litigation with all of its concomitant financial, temporal, and emotional trimmings. A public policy that gives a government agency the right to sue a person who asks for a government document is the antithesis of the policy underlying both OPRA and the common law to provide citizens with a means of access to public information to keep government activities open and hold the government accountable.

Now, not only has the temporary restraining order against Scheeler been lifted, but the township will be paying his legal fees as well. The court notes that not doing so would basically allow government agencies to trap citizens in "quixotic battles" against entities with "almost inexhaustible resources." Because Scheeler was "trapped" by a lawsuit he didn't initiate and one that pertained to the government's obligation to turn over requested documents, the presiding judge reads the fee-shifting provision of the state's open records law as applicable to legal fees. To do otherwise, the court points out, would be reward the township for violating open records laws.

from the premature-encapsulation dept

While there have been arguments for years now about whether or not cellphones cause cancer, the general consensus tends to be that cell phones emit so little radiation as to generally be safe. That's not to say that you might not run into a problem should you duct tape a dozen cell phones to your face, and I won't go so far as some to declare there's absolutely no risk, as that would certainly be quick to draw the ire of the Internet's "electromagnetically sensitive," whom I've found to have incredible hearing. But studies that have claimed a cancer risk have fairly consistently been contradicted by studies that claim the opposite, and agencies like the FCC state they consistently monitor the latest studies and have found cell radiation is not something that should keep you up at night:

"Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree that more and longer-term studies should explore whether there is a better basis for RF safety standards than is currently used. The FCC closely monitors all of these study results. However, at this time, there is no basis on which to establish a different safety threshold than our current requirements."

Still, Maine, San Francisco, and numerous other states and municipalities have pushed for new labels on cellular devices warning consumers about the potential cancer risk, much to the chagrin of the wireless industry. The problem isn't that many towns and cities are worried about the possible risk, it's that they choose to enact ordinances before the science fully supports them. That recently occurred in Berkeley, where the local government passed an ordinance (pdf) that requires all cellular devices sold to prominently feature the following warning:

"To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely."

The nation's biggest industry association, the CTIA, has since filed a lawsuit (pdf) against the city of Berkeley that claims, among other things, that the ordinance violates wireless carrier First Amendment rights. That's pretty much a standard claim used by all telecom lawyers as part of "throw it at the wall to see what sticks" effort (they're using it to fight net neutrality, too). But the suit also correctly notes how the government's guidelines are well above where any actual health impact might actually occur:

"The lawsuit said the instructions falsely imply that the federal guidelines are safety limits. The Federal Communications Commission has stated, based on “overwhelming” scientific authority, that exceeding its radiation-exposure guidelines “does not pose a safety concern,” because the standards are set 50 times lower than the danger levels, CTIA’s lawyers said. "According to the federal government, no cell-phone model approved for sale in the United States creates a safety concern," the suit said.

And while I'm probably the last person to buy what comes out of the CTIA's mouth, the idea that municipalities should wait for real science before terrifying the local populace and building a nation of paranoids generally seems like a good idea. You get massively more radiation from all manner of technology from microwaves and computer monitors to light bulbs, so if municipalities really want to rush ahead and affix extra labels every potential radiation threat under the sun (including the sun itself), they really ought to get busy. And if you really need to worry about radiation, as XKCD recently noted, there's far better repositories for your anxiety.

from the a-bit-late-now? dept

Back in March, we reported on a campaign in Japan seeking to raise awareness about the extreme copyright provisions in TPP. Of course, making copyright even more unbalanced is just one of many problems with TPP, and arguably not even the worst. Now activists in the country have launched a much broader attack on the whole agreement by filing a lawsuit against the Japanese government in an attempt to halt its involvement in the talks. As Mainichi reports:

A total of 1,063 plaintiffs, including eight lawmakers, claimed in the case brought to the Tokyo District Court that the Trans-Pacific Partnership pact would undermine their basic human rights such as the right to live and know that are guaranteed under the Constitution.

The envisaged pact would not only benefit big corporations but jeopardize the country's food safety and medical systems and destroy the domestic farm sector, according to their written complaint.

As well as oft-voiced concerns that Japan's key agricultural sector would be harmed, the plaintiffs are also worried that TPP will push up drug prices -- something that is a big issue for other nations participating in the negotiations. The new group rightly points out that corporate sovereignty jeopardizes the independence of Japan's judicial system, and said that the secrecy surrounding the talks:

violates the people's right to know as the document is confidential and the negotiating process will be kept undisclosed for four years after the agreement takes effect.

Although it is hard to judge how much of a threat this move represents to Japan's continuing participation in TPP, the legal firepower behind it is certainly impressive: according to the Mainichi story, there are 157 people on the legal team. At the very least, it shows that resistance to TPP and its one-sided proposals is growing -- and not just in the US. But you can't help thinking it would have been a good idea for concerned Japanese citizens to have made this move earlier, rather than leaving it to the eleventh hour, with TPP close to the finishing line.

from the awwwwww dept

Perhaps, like me, you've never really understood the curious ban some airflights and airlines have had on mobile and electronic devices during flights, take-offs, and landings. Perhaps, like our Jefe, Mike Masnick, you've dismissed the requests from flight attendants that those devices be fully powered down out of hand, because you too are a rebel the likes for which this world is wholly unprepared. And maybe you too cheered when the FAA summarily dismissed these silly rules way back in 2013, thinking that the madness of a few moments without our favorite devices had finally come to an end.

But then, as you may know, the Association of Flight Attendants sued the FAA in order to retain the ability to lord over your smart-phones, tablets, and computers on flights. Notably, the AFA's filing made essentially zero claims having anything to do with the safety of electronic devices on the flights. Instead, their argument centered on whether the power to decide whether flight attendants could treat passengers like children who hadn't finished their vegetables resided with the FAA, or if the AFA should have some input.

In this case, it really does not matter whether Notice N8900.240 is viewed as a policy statement or an interpretive rule. The main point here is that the Notice is not a legislative rule carrying “the force and effect of law.” Perez, 135 S. Ct. at 1204. A legislative rule “modifies or adds to a legal norm based on the agency’s own authority” flowing from a congressional delegation to engage in supplementary lawmaking. Syncor, 127 F.3d at 95.

That's court-speak for "nice try, now go away." Of course the FAA can make changes to flight rules as it pleases and, when it comes to the use of devices the ban for which has always been cast in the light of flight-safety, an association for flight attendants ought to have about as much input as a doctor's receptionist should have on medical policy. This tantrum of a suit, which is all it ever was, has been dismissed and we are finally free to play Angry Birds during takeoff. Free at last, free at last.

More seriously, it's somewhat nice to see some aspect of security theater being done away with regarding anything to do with airplanes and flights. If we could just take this same tact with the rest of airport security, we'd be making a world of improvements.

from the pre-crime dept

A few months ago, we wrote about a lawsuit filed by a boxing promoter that sued UStream for not taking down streams of a boxing match fast enough. The promoter claims that because it warned UStream ahead of time to block these streams, it should have been faster about deleting them. That case is still ongoing and headed to trial, but in another story of boxing and streaming, we now have an attempt at creating a legal violation of pre-crime copyright infringement. It appears that HBO and Showtime have decided to pre-sue two sites that it claims are planning to stream the big Floyd Mayweather/Manny Pacquiao boxing match. If you've somehow been under a rock, this fight is getting a ton of publicity and is set to happen this weekend.

Yet, the two big broadcasting companies that will be showing the fight, Showtime and HBO, feel that they can sue ahead of time, according to the lawsuit [pdf] -- which raises a ton of legal questions. And it seems that many of those questions could be answered with a basic "Uh, no, you can't do that."

First off: can they sue over a copyright on content that simply doesn't exist yet? HBO and Showtime say, no problem, that they'll have it eventually:

Plaintiffs intend to register the copyright in the Coverage, as joint
authors, within three months after May 2, 2015.

But then there's the bigger question: can these websites be sued for breaking the law some time in the future? It seems to raise issues a la "pre-crime" and Minority Report. Yes, the sites make it pretty clear they're going to try to stream the fight, but what's the actual infringement before it happens? You can't sue over theoretical infringement. You have to show actual infringement. But HBO and Showtime seem to have made up a new form of copyright infringement: "anticipated infringement."

This leads to odd statements in the lawsuit about future events that simply haven't happened yet:

Plaintiffs are informed and believe and on that basis allege that
Defendants will materially contribute to direct infringement of their rights in the
Coverage by others, including without limitation third parties from whom
Defendants acquire the infringing stream and third parties who use other websites to
redistribute the infringing stream from Defendants’ websites.

Perhaps it doesn't matter in the grand scheme of things: on Saturday, the event will happen and these sites will or won't stream the boxing match. Maybe the lawsuit scares them off and they don't stream the match -- and then the lawsuit can be easily dismissed. Or, if they do, HBO and Showtime amend the complaint to move the future tense to the past tense and all is good. Assuming HBO and Showtime believe this is the case, then the lawsuit serves as something of a possible deterrent to the sites, showing that HBO and Showtime are so serious about potentially suing them, that they already have. Still, it seems somewhat questionable to sue over infringement that everyone readily admits has not yet happened in any way, shape or form.

And, don't get me started on the question of whether or not merely embedding a stream hosted somewhere else should be seen as direct infringement, but that's a discussion for another day...

from the an-abundance-of-caution dept

A few weeks back, we wrote about USTelecom, a trade association of broadband providers filing a legal challenge to the FCC's net neutrality rules in the DC Circuit. This took some folks by surprise, because the general assumption was that you couldn't file the lawsuit until after the FCC had officially put the rules in the Federal Register, and that hadn't happened yet. However, USTelecom decided to go ahead because part of the new rules fell under a different legal regime, and under that regime, you only have 10 days to file an appeal. So USTelecom decided to file quickly just so they didn't lose out on a procedural issue in missing those 10 days. Today, however, the rules finally went into the Federal Register (and they're set to take effect on June 12), and so USTelecom basically filed the same thing all over again. You can read the new "supplemental" filing [pdf] which is almost word for word the same as the first, except adding the fact that it's doing this just in case it was supposed to really wait for the Federal Register stuff to happen:

This Court has encouraged petitioners, in circumstances such as those here where the triggering event for
petitioning for review is unclear, to file a supplemental petition for review.

Basically, this is the same lawsuit, but USTelecom wants to just cover all of its bases to make sure, dammit, that this appeal to the new rules is filed however possible.

from the good-timing dept

Well, that was quick. As we noted, just yesterday, USA Today published a detailed takedown of the DEA's massive phone records mass surveillance program that was actually started more than two decades ago. And this morning, the EFF, representing Human Rights Watch, filed a lawsuit over the program. Of course, the program had actually been revealed years ago, and back in January, the US government revealed some details itself about the program, which is what prompted the new lawsuit. As the EFF notes in its press release about the lawsuit:

“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”

I recommend reading the full complaint which has more details. It details why the program violates both the First and Fourth Amendments. The basic First Amendment argument:

By their acts alleged herein, Defendants have violated and are violating
the First Amendment free speech and free association rights of Plaintiff and its
staff, including the right to communicate anonymously, the right to associate
privately, and the right to engage in protected advocacy free from government
interference.

And the Fourth Amendment argument:

By the acts alleged herein, Defendants have violated Plaintiff’s
reasonable expectation of privacy and denied Plaintiff its right to be free from
unreasonable searches and seizures as guaranteed by the Fourth Amendment to the
Constitution of the United States.

It seems likely that the government will pull out all the usual stops to try to end this lawsuit, arguing "national security" and "state secrets" and all that jazz. However, as the USA Today report noted, Eric Holder agreed to kill off this program after realizing that it was nearly impossible to defend in the same manner as the feds were trying to defend the NSA's bulk phone records collection...

from the is-there-someone-less-crazy-I-could-speak-to? dept

The billion-dollar lawsuit against the producers of the Edward Snowden documentary CitizenFour rolls on, gradually unraveling as it does. Since we last covered the story (where the United States of America was added as an involuntary plaintiff -- a plaintiff since forcibly removed by the court), a lot has happened. For one, CitizenFourwon an Oscar for Best Documentary, something that can't be sitting too well with Horace Edwards and his legal representation, which sought to have the film removed from consideration during the early days of this lawsuit.

Around January 23rd, Lamfers requests that a copy of the film not be allowed to be entered as evidence, what with it being full of highly-sensitive documents, espionage and whatever. She asserts that the movie contains so much classified info that it should only be reviewed in camera.

Then, no hell at all breaks loose, although in Lamfers' and Edwards' eyes, the espionapocalypse is nigh.

Poitras and her attorney deliver a copy of the film to the Lamfers. She does not take it well.

"I said I did not want to take possession of it. This was because of my understanding the film contains classified information based on my having seen the film. I received no response to [my] request from defendants' counsel [to bar the film from being entered as evidence in court]," Lamfers wrote in an email sent to the judge presiding over the suit. "To the contrary defendant's counsel delivered a copy of the DVD to my office (which remains unopened and under lock and key)."

That time when the normal process of discovery became a cheap knockoff of a le Carré novel.

From this point on, it's a long but fast slide downhill into amateur cloak-and-dagger awkwardness.

Two DVDs and a transcript of the film are entered as evidence because this is how that process works. Lamfers immediately files a motion asking for these to be sealed. The requested injunction would have no effect on the public release of the film, as the judge notes.

"Given the inherently public nature of this film, the Court can discern absolutely no interest that could justify sealing this exhibit. Moreover, even if this DVD contained some sort of confidential information for which Plaintiff had an interest in preventing public disclosure, it has already been publicly filed…"

[Side note: For reasons only comprehensible to Cryptome, a copy of the movie is being made available at the site, apparently under the mistaken belief that publicly-filed evidence automatically enters into the public domain. This perhaps-willful misunderstanding of both the court system and copyright law may be at least partially due to Cryptome's ongoing animosity towards anyone involved with the Snowden leaks for their refusal to make every single document Snowden gave them available in one massive dump -- and without redactions.]

Undeterred by the judge's logic, Lamfers proceeds to pester the court with "emergency" phone calls in hopes of sealing the Very Dangerous DVD. The judge reminds Lamfers that there are certain ways these things are handled during court proceedings and making "emergency" phone calls isn't one of them. Lamfers reads this rebuking email and decides the judge is suggesting she pester the court with "emergency" emails.

Lamfers emails the judge, at 12:46 AM local time (according to the court record), chastising the court for endangering national security and not immediately responding to her call.

"This situation has placed the plaintiff in an untenable position regarding avoiding irreparable harm and obtaining appropriate relief sought on a serious issue in a timely manner," she wrote. "The denial of a sealing motion has furthered the irreparable harm and relief necessary to address such harm, among other things, by the continuing injury through repetition of classified, stolen information that reaches a broader constituency of extremists with each showing."

Lamfers follows this up with a filed motion stating that the DVDs and transcript should be locked up under the legal precedent of "better safe than sorry." (No, I am not making this up. If I was, it would be more credible.)

Apparently further phone calls from Lamfers ensued, because the court is forced to formally -- via a court order -- tell her to knock it off.

Plaintiffs counsel has been instructed that the Court prefers informal communications with the Court be made by e-mail, with copy to the opposing counsel. In the Court's experience, such informal communications are rarely necessary and are typically limited to coordinating hearing dates after the court has determined a hearing is necessary, or to address routine, procedural questions. The does not and will not entertain requests for relief in this manner and the Plaintiff shall refrain from this practice going forward.

Well, we'll see if that works. Nothing else has so far. The docket shows things have remained eerily quiet over the past several days, but there's no telling how many phone calls and emails have made their way to Judge Julie Robinson's court in the meantime.

Of course, the lawsuit doesn't hinge on the misguided actions of the plaintiff and his counsel but on the actual merits of the case. However, even if Edwards' suit has its legal merits, he and his counsel appear to be the worst people to argue them.

Together with FFDN, a federation of community-driven non-profit ISPs, La Quadrature du Net is bringing a legal action before the French Council of State against a decree on administrative access to online communications metadata. Through this decree, it is a whole pillar of the legal basis for Internet surveillance that is being challenged. This appeal, which builds on the European Union Court of Justice's recent decision on data retention, comes as the French government is instrumentalizing last month's tragic events to further its securitarian agenda, with an upcoming bill on intelligence services.

LQDN is referring to the fact that in December 2014, the French government quietly passed an executive decree bringing in controversial surveillance measures that were passed by the French parliament a year before -- more details are given in LQDN's post. This is the first legal challenge carried out directly by La Quadrature du Net, but is unlikely to be the last:

Eventually, this legal challenge will make it possible not only to formally refer the issue to the Constitutional Council, since the [new surveillance law] never underwent a constitutionality check, but also to confront existing French Law with the [Court of Justice of the EU] and the [European Court of Human Rights]'s case laws.

In other words, even if the present challenge before the French Council of State fails, there are further legal avenues that can be explored afterwards, which makes the likelihood that at least one of them will be successful much higher.